Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214
Following a recruitment agency’s Christmas party, to which
all employees and their partners were invited, a number of the guests including
Mr Major, the Managing Director (“MD”) of the agency, and Mr Bellman, an
employee of the agency and the Claimant, continued their celebrations at a
hotel bar where some of the employees were staying at the agency’s expense. This
was not a planned extension of the party but the agency did pay for the taxi
fares to get there and the majority of drinks.
The group continued to drink alcohol and discuss a variety
of topics. At around 2.00am the conversation turned to work. 45 minutes later,
when challenged about his decision to appointment a new employee, the MD
summoned all present employees and lectured them about the fact that he was the
owner of the company; he was in charge and he made the decisions. The MD said
this new employee was in the correct place. The Claimant, in a non-aggressive
manner, verbally challenged this. The MD proceeded to punch the Claimant twice
in response, causing him traumatic brain injury.
The High Court held that the agency was not vicariously liable
for the MD’s actions. It considered the drinks at the hotel were impromptu.
They were not a seamless extension of the Christmas party. Those present when
the incident occurred were there in the context of “entirely voluntary and
personal choices” – they were there to engage in a heavy drinking session. The
fact that a work-related topic was raised was not enough.
The Court of Appeal has now disagreed. The CA has confirmed that
the correct approach was set out by the Supreme Court in Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 which is the
following two stage test:
1. What “field of activities” has been
entrusted by the employer to the employee? This question is to be addressed
broadly.
2. Was there a sufficient connection between
the “field of activities” and the wrongful conduct to make it right for the
employer to be held vicariously liable under the principal of social justice?
The CA agreed that the MD’s role had been widely drawn. He
was the “directing mind” of a relatively small “round the clock” company with
no set hours and responsibility for all management decisions. He spent much of
his time working on the agency’s business and was in overall charge of all
aspects of it.
The CA took the view that there was a sufficient connection between the field of activities and the
assault. Of significance was the manner in which the assault arose. After 45
minutes of discussions about business matters the MD believed his authority had
been challenged. He then purported to exercise his managerial control by summoning
his colleagues and lecturing them about his authority. When he felt his
authority was challenged again he asserted the authority granted to him by the
agency, by punching the Claimant. Even if the MD had removed his managerial hat
at the beginning of the impromptu drinks, he chose to don it again and misuse
his position when his managerial decisions were challenged.
Lord Justice Irwin was keen to emphasise that the facts of
this case were unusual and it was not authority for the proposition that
employers became insurers for violent acts by their employees.
Since this judgment the approach in Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 has once
again been confirmed as correct and adopted in WM Morrison Supermarkets Plc v Various Claimants [2018] EWCA Civ 2339. In this latest case the CA has upheld the
view of another High Court judge, in finding that Morrisons are liable for the
unlawful actions of an employee who deliberately leaked employee personal data. Interestingly, that liability attached
despite the fact that the employee’s motive was to damage the employer. The
answer, says the CA, if employers are concerned about the costs associated with
this sort of problem, is to insure against it.
The law on vicarious liability has moved on enormously in
recent years. The focus on the connection with work and the principle of social
justice – is it right to hold the employer liable for the employee’s act? – has
now replaced the old tests and many of the old cases would now be decided
differently. Whilst there will still be cases where an employer might escape
liability because the employee is truly “on a frolic of their own” it seems
that they will be fewer and further between.
Tony Rippon - Employment Solicitor
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